- (1.) R. R. K. Trivedi, J. This writ petition has been filed for quashing the order, dated 30-8-1994, Annexure I passed by the Board of Revenue, by which revision of the petitioners has been dismissed and order dated 10-6-1991, passed by Assistant Collector First Class/sub-Divisional Officer, Sadar Bulandshahr by which he allowed application of respondents No. 4 to 6 for setting aside the ex pane decree and implead them as defendant in the suit filed by petitioner No (. 1, under Section 229-B/176 of U. P. Z. A. and L. R. Act (hereinafter referred to as the Act ).
(2.) FACTS giving rise to this petition are that plot No. 57, area 8-2-14 of Khata No. 75 and plots Nos. 66 and 67, area 1-5-0 and 1-12-10 respectively of Khata No. 26 were recorded as exclusive land holding of respondent No. 7 Sanjay Kumar. Petitioner No. 1 Akhil Kumar, real brother of respondent No. 7, filed the aforesaid suit on 4-11-1987 against Sanjay Kumar and petitioners Nos. 2 to 4 for declaration and partition under Section 229-B/176 of the Act. Gram Sabha and State of U. P. were arrayed as defendants Nos. 5 to 6 in the suit. In this suit, an application was filed on 26-11-1988 saying that parties have compromised and each of the brother has 1/5th share in the land in dispute and prayed that the compromise may be accepted and preliminary decree may be prepared. On this application, the suit was decreed by respondent No. 3 on 20-1-1989. The judgment has been filed as Annexure 4 to the writ petition. A perusal of the order, dated 20-1-1989 shows that the suit was decreed mainly on the basis of the compromise and there is no reference of the Gaon Sabha and State of U. P. as to whether they contested the suit or filed any written statement. By the said order Lekhpal was directed to be summoned for filing Kurras. A final decree was prepared on 27-4-1989 dividing the land in dispute in five shares. Respondents No. 4 to 6 on knowing about the aforesaid final, decree, moved an application on 27-6-1989 (Annexure VIII to the writ petition) and prayed that the ex parte decree may be set aside and they may be impleaded as defendants in the suit. The facts stated in this application were as under : (i) That respondent No. 7 Sanjay Kumar was exclusive tenure-holder of the land in dispute. This is his self-acquired property. (ii) That the applicants (respondents 4 to 6) purchased the land in dispute by two registered sale-deeds executed in their favour on 1-10-1986 and 24-10-1986 for a total consideration of Rs. 69,000. (iii) That other brothers of respondent No. 7 had no interest. Applications for mutation of their names on the basis of the sale-deeds are pending as case Nos. 110 of 1987 and 18 of 1987 respectively. (iv) That Raghuraj Singh, father of respondent No. 7 has. filed Original Suit No. 118 of 1986 for cancellation of the sale-deeds which is pending -in Civil Court. (v) That Sanjay Kumar, respondent No. 7 had also filed Original Suit No. 174 of 1987 for cancellation of sale-deeds which is also pending in the Civil Court. (vi) That petitioners were necessary parties in the aforesaid facts and circumstances but they were not deliberately impleaded as defendants. (vii) That decree has been obtained behind their back just to defeat their valuable interest. (viii) That the decree has been obtained by concealing facts and playing fraud on the Court in collusive manner. The petitioners filed objection on 17-4-1990 and contested this application of -respondents 4 to 6. Respondent No. 3 by order, dated. 10-6-1991 allowed this application, set aside the ex parte decree and impleaded respondents. Nos. 4 to 6 as defendants. Order of respondent No. 3 was challenged by filing revision before Additional Commissioner who vide order, dated 30-3-1992 recommended to the Board; dated 30-3-1992 recommended to the Board of Revenue to set aside the order of the trial court. The Board of Revenue, however, by order, dated 30-8-1994 after hearing parlies, has' refused to accept the recommendation of the Additional 'commissioner and has dismissed the revision. Aggrieved by the order of the Board of Revenue, petitioners have approached this Court, under Article 226 of the Constitution. . Learned Counsel for the petitioners has submitted that as respondent Nos. 4 to 6 were not party to the suit, they could not move an application to set aside the decree passed in the suit filed by petitioner No. 1. It has also been submitted that Section 151 of" the Code of Civil Procedure could not be legally taken aid of for setting aside the decree as there is a specific provision for setting aside the ex pane decree. The submission of learned counsel for petitioners is that the only option for the respondent Nos. 4 to 6 was to file a suit. Learned counsel for petitioners has placed reliance on several cases which are being mentioned below : U. P. State v. Sheo Saran Agarwal, 1959 ALJ 818 (D. B. ). Smt. Santosh Chopra v. ; Teja Singh and another, AIR 1977 Delhi 110. Subahu Kumar Jain v. ' Jagdish Prasad Chaudhary and others, AIR 1990 Gau. 66. Mt. Jagrup Gir v. Dy. Director of Consolidation, Ballia and others,1919 ALR 222. Arjun Singh v. Mohinder Kumar and others, AIR 1964 SC 993.
(3.) SECOND submission of the learned counsel; for petitioner is that 'as the petitioners and respondent No. 7 are. real brothers and members of Joint Hindu Family, they could partition the land in dispute on the basis of compromise and'1 the third party could not allege the same collusive and the decree could not be legally set aside on their instance. For this submission reliance has been placed in case of Jai Singh Rais v. Harnam Das and others, AIR 1964 All 381. Lastly, it has been submitted that the contrary view taken by this court in case of Suraj Deo v. Board of Revenue, U. P. , Allahabad and others, 1982 (8) ALR 24, is a judgment per incuirium as the judgments of Division Bench and Single Judge of this Court mentioned above and case reported ia AIR 1964 SC 993 were not considered. It has also been submitted that if a learned Single Judge disagreed with the decision of another learned Single Judge, the appropriate course was to refer the matter to a large bench for an authoritative decision. Reliance for this submission has been placed in cases of Shri Dhar v. Nagar Palika, Jaunpur and others, AIR 1990 SC 307; State of Bengal v. Falguni Dutta and another, JT 1993 (3) SC 288.;